Blue v. Craig, No. 73-2183

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before WINTER, RUSSELL and FIELD; DONALD RUSSELL
• Citation: 505 F.2d 830
• Parties: Grace B. BLUE et al., Appellants, v. Clifton M. CRAIG, Commissioner of the North Carolina Department of Social Services, et al., Appellees.
• Docket Number: No. 73-2183
• Decision Date: 18 October 1974

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505 F.2d 830 Grace B. BLUE et al., Appellants,
v.
Clifton M. CRAIG, Commissioner of the North Carolina
Department of Social Services, et al., Appellees. No. 73-2183. United States Court of Appeals, Fourth Circuit. Argued June 7, 1974.
Decided Oct. 18, 1974.

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Denison Ray, Durham, N.C., The Legal Aid Society of Durham County, North Carolina, for appellants.

William F. O'Connel, Asst. Atty. Gen. of North Carolina (Robert Morgan, Atty. Gen. of North Carolina, on brief), for appellees Clifton M. Craig and North Carolina Board of Social Services.

Lester W. Owen, Durham, N.C., on brief for appellee Thomas Hogan.

Before WINTER, RUSSELL and FIELD, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is a class suit for a declaratory judgment that the North Carolina State Plan for Medical Assistance, ¹ fails to provide and thus deprives North Carolina recipients of medical assistance secured to them by Section 1396a, et seq., 42 U.S.C., Title XIX of the Social Security Act, and the regulations promulgated thereunder. ² The actual deprivation complained of is the failure to provide such recipients with 'the necessary transportation to and from the providers of medical services or in the alternative, adequate reimbursement for transportation costs' as allegedly required under the Social Security Act and regulations promulgated thereunder but denied under the North Carolina regulations. Injunctive relief assuring future rights to transportation reimbursement and for reimbursement on account of past expenses of transportation are, also, sought.

The plaintiffs are all residents of Durham, North Carolina, and certified as eligible for medical assistance under the North Carolina Medical Assistance Program, as established by the State of North Carolina in cooperation with the federal government under the terms of the Social Security Act. They sue not only individually but also on behalf of the entire class of recipients similar in interest to them.

The defendants are the chief administrative officer of the North Carolina Department of Social Services, the members of the State Board of Social Services, and the Director of the Durham County Department of Social Services.

Federal jurisdiction of the action was asserted under Section 1983, 42 U.S.C., and Sections 1331, 1343(3) and 1343(4), 28 U.S.C. and Sections 2201, 2202, 28 U.S.C. Of its own motion, the District Court suggested dismissal of the action for failure to state a claim cognizable under Section 1983. After a hearing on that motion, the District Court dismissed the action, 'insofar as 1983 is relied upon to maintain this suit.' It likewise found want of jurisdiction on the alternative ground under Section 1331 by reason of the absence of the jurisdictional amount. The plaintiffs have appealed from this dismissal. We reverse.

The primary theory on which the plaintiffs predicated their federal right of action and which the District Court disallowed was that their action itself was authorized by Section 1983, 42 U.S.C. and that jurisdiction of that action in turn was conferred by Sections 1343(3) and (4), 28 U.S.C., for which there is no jurisdictional amount requirement. Numerous authorities may be cited in support of the availability of 1983 as a

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vehicle for redress of violations of rights guaranteed by the Social Security Act. Edelman v. Jordan (1974), 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d, 662; Hagans v. Lavine (1974), 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577; California Human Resources Dept. v. Java (1971), 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666; Rosado v. Wyman (1970), 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Dandridge v. Williams (1970), 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; King v. Smith (1968), 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Damico v. California (1967), 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647; Anderson v. Graham (8th Cir. 1973), 492 F.2d 986; Gilliard v. Craig (D.C.N.C.1971), 331 F.Supp. 587, aff'd 409 U.S. 807, 93 S.Ct. 39, 34 L.Ed.2d 66; Roselli v. Affleck (D.C.R.I.1974), 373 F.Supp. 36; Bass v. Rockefeller (D.C.N.Y.1971), 331 F.Supp. 945, vacated on other grounds (2 Cir.), 464 F.2d 1300; Ojeda v. Hackney (D.C.Tex.1970), 319 F.Supp. 149, vacated on other grounds (5th Cir.), 452 F.2d 947. Such cases have, however, generally involved claims of constitutional deprivations, ³ and the District Court held in this case that the availability of 1983 as a basis for an action such as this extends only to situations where the claim is constitutionally based. Specifically, it held 1983 does not afford a right of action on account of a deprivation under 'color' of a state statute or regulation of a right based merely on a federal statute. Since, under its construction of the complaint, the plaintiffs stated no constitutional deprivation as a basis for their cause of action but had rested their action entirely on the claim that the state regulation in question was simply inconsistent with the federal statute, it concluded that the plaintiffs were without any rights under Section 1983. For the reasons hereafter given, we are not certain the complaint should be so narrowly construed as premising plaintiffs' cause of action wholly on inconsistency of state regulation and federal law and as not presenting constitutional

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issues. Accepting, however, for the moment the premise that plaintiffs' action poses only a claim of an infringement by a state regulation on a right conferred merely by federal 'law,' we disagree with the conclusion reached by the District Court.

By its express terms 1983, which, as one commentator has remarked, 'is notable for the absence of qualification or limitation,' ⁴ creates a cause of action for a 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States. Despite this seemingly unambiguous language authorizing both statutorily-based and constitutionally-based actions, the District Court, relying on Wynn v. Indiana State Department of Public Welfare (D.C.Ind.1970), 316 F.Supp. 324, dismissed on appeal by agreement of parties under Rule 42(b), Rules of Appellate Procedure (May 26, 1971), would disregard completely the words 'and laws' as a basis for a cause of action under 1983 and would thereby deny jurisdiction under the section over statutorily-based actions. ⁵ It arrived at this conclusion by adopting the reasoning of Wynn that the words 'and laws' were not in the original Civil Rights statute as adopted by Congress in 1871 but represented a gratuitous interpolation by the draftsman of the 1875 Revised Statutes, an interpolation which, even though approved in the adoption of the Revised Statutes, could not enlarge the scope of the original statute. The rationale behind this conclusion was stated in Wynn in these words:

'* * * No alterations in statutory coverage may be based upon * * * changes by the reviser * * *. The intention of Congress in enacting the Civil Rights Act of 1871 must be determined from the language of the original statute, its legislative history and subsequent judicial interpretations.' (At 328).

Such pruning of the statute by the elimination therefrom of a phrase that has appeared in the Statute, as the Revised Statutes have been phrased, for almost a century without any question being raised of its legitimacy certainly has never received the sanction of the Supreme Court, either before or after the decision in Wynn. In Greenwood v. Peacock (1966), 384 U.S. 808, 829-830, 86 S.Ct. 1800, 1813, 16 L.Ed.2d 944, which preceded Wynn, the Court said:

'* * * Under 42 U.S.C. 1983 (1964 ed.) the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well.'

Again, in Dandridge v. Williams, supra (397 U.S. at 475, 90 S.Ct. at 1156), the Court, in reviewing a 1983 District Court decision invalidating a Maryland regulation under its AFDC program for inconsistency with the federal Act, declared that the decision below must 'be affirmed if the Maryland regulation is in conflict with either the federal statute or the Constitution,' thus equating for 1983 considerations statutorily-based and constitutionally-based claims. And recently and subsequent to Wynn, the Court in Lynch v. Household Finance Corp. (1972), 405 U.S. 538, 543, n. 7, 92 S.Ct. 1113, 1117, 31 L.Ed.2d 424, reh. denied, 406 U.S. 911, 92 S.Ct. 1611, 31 L.Ed.2d 822, after summarizing much of the legislative history discussed at length in Wynn, concluded

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with this definitive explication of the scope of 1983:

'* * * Although the original substantive provision had protected rights, privileges, or immunities secured by the Constitution, the provision in the Revised Statutes was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well.'

It seems plain from these excerpts-- dicta though they may be, as Wynn would suggest-- that the Supreme Court reads 1983 as it is plainly phrased in the Revised Statutes and, unlike the decision below and that in Wynn, would give effect to the words 'and laws.' ⁶ In so doing, the Court is simply recognizing 'that the Revised Statutes are positive law that repeal and supersede all previous Statutes at Large.' Note, Federal Jurisdiction Over Challenges to State Welfare Programs, 72 Col.L.Rev. 1404, 1418 (1972). ⁷

This conclusion that 1983 authorizes actions brought 'to provide protection of rights, privileges, or immunities secured by federal law' has been recognized and applied in a number of well-reasoned federal decisions. The first decision to give it such application was Bomar v. Keyes (2d Cir. 1947), 162 F.2d 136, 138-139, cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400, reh. denied, 332 U.S. 845, 68 S.Ct. 266, 92 L.Ed. 416,...